Summary: Patents on algorithms are promoted in all sorts of misleading (but familiar) ways, which include bias by omission (cherry-picking), fake economics, distortion of statistics, and possibly xenophobia too (fear of China)

China seems to have become almost a role model or a poster child to Battistelli’s EPO (it wants applications from China at the expense of anything). Quality of patents does not matter to them. Public interests or service don’t matter either, just the profit of some tiny niche of people who make a living out of patents alone. Patent maximalists in the US, likewise, regularly use "China!" as their argument for patent maximalism (Watchtoll, IAM, David Kappos and IBM can’t stop talking about “China!”). It’s troubling because it’s incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).

“It’s troubling because it’s incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).”“Good to see that SIPO aligns with the EPO’s “any hardware approach” when it comes to patent-eligibility,” said Bastian Best (very vocal proponent of software patents but not a software developer) the other day. That’s the same man who had also linked to Steve Lundberg’s “patents4software” blog (non-developer speaking ‘on behalf’ of developers [1, 2]). Lundberg says “Kudos to China on Software Patents,” alluding to news which we covered in [1, 2]. They are trying to argue that just because China permits software patenting so should the US, which scales back if not eliminates them.

Jack Ellis, another lobbyist like Lundberg (they are disguised as professionals, but all they do is lobby), has just published this post titled “China relaxes rules on software patentability – and the United States loses more ground”.

Front groups like IAM are using shame tactics against the USPTO. It’s part of that push which we have been writing quite a lot about recently. They also do this in India quite frequently (at least twice in the past week alone).

“Front groups like IAM are using shame tactics against the USPTO.”Ellis says “United States loses more ground,” as if it’s a bad thing to control quality. Ar they really losing by improving their system? IAM’s lobbyists just can’t help but show what they really are. It’s not a news site and it’s just as biased as Techrights, except we in Techrights are not funded by anyone and certainly not selling influence under the guise of ‘journalism’.

IAM didn’t stop there. The lobbying, which characteristically came out just before the weekend started, intensified even further with gross misinterpretation of data from a group antagonistic towards patent trolls, Lex Machina. See this IAM post titled“Software patents fight back in the US as Federal Circuit decisions begin to influence lower courts” and examine it closely enough. This is mostly fiction from the think tank known as IAM, which misinterprets data for the sake of promoting software patents, as usual.

“IAM is lying/distorting things again, but that’s just its business model.”The core of their argument is CAFC, where it says: “The fall in 101 invalidations at the end of 2016, though, may indicate that a series of decisions last summer by the Court of Appeals for the Federal Circuit (CAFC) including Enfish, Bascom and McRo is beginning to have an effect.”

There were far fewer patent lawsuits in 2016, and fewer people bothered even bringing software patent to courts (after Alice, for obvious reasons). IAM is lying/distorting things again, but that’s just its business model. That’s what many firms are paying it for. It’s their propaganda mill, it’s tasked with perception management, e.g. softening the image of patent trolls.

Writing about the same data as above — albeit without the lobbying (or pseudo-activist) slant — Law 360said that Lex Machina “tallied the number of patents that courts have invalidated under Alice.” To quote the opening paragraph (most of it is behind paywall anyway):

The national law firms that handled the most patent cases in 2016 includes several big names that were also among the busiest in 2015, according to a new report by Lex Machina, which also tallied the number of patents that courts have invalidated under Alice.

We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills. IAM’s conclusion, as put in the headline (to make it into news aggregators) is highly misleading, but that’s what their subscribers pay for. They deposit a small proportion of their income and withdraw influence and warped public perceptions. Some of the misguided clients might be lured into lawsuits that would be lost; only the lawyers would profit.

“We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills.”Looking closely at what CAFC has been doing, in 2016 it agreed with PTAB invalidations almost 80% of the time and the same trend continues this year, based on figures that we recently shared here. Law films keep cherry-picking CAFC cases (even old ones, as IAM did above) in order to make it seem as though software patents still have ‘teeth’. Published in a few domains of patent lawyers and other lawyers [1, 2], one such law firm explained “Federal Circuit Rules Software Patent for a User Interface is Patentable Subject Matter,” but if one looks at all the other CAFC cases, then it’s abundantly clear to see that they are just cherry-picking cases and nitpicking reality. Later on we will write about some new cases where software patents are invalided en masse — not something that IAM would touch even with a 5-foot bargepole (bias by omission). █

The EPO’s chiefs, or the thugs who are effectively placed above the law, seem to be attempting a war on whistleblowers

Sadly for them, anyone who brings a phone to work already has a camera and data can be encrypted

Summary: The unreasonable and likely illegal measures taken by EPO management in order to supervise dissent (even from outside the EPO) deserve outside scrutiny, from those capable of breaching Battistelli’s wall of immunity

The Register, which has readership of millions of people per day (not just in the UK), continues to do a fine series on EPO scandals. It is in no way coordinated by Techrights, but it is ever more apparent that they rely on us for information, documents, etc. so keep these coming.

The latest in the series from The Register looks into the privacy angle (sheer privacy abuses) by Team Battistelli and those cronies like Minnoye who have grown increasingly worried about leaks (they actually speak about it). There is plenty of room here for comparisons to the Trump administration, which faces a growing number of leaks and unauthorised disclosures that it is unable to prevent/respond to. To quote Kieren McCarthy:

The European Patent Office (EPO) is seeking new powers that it would allow it to search the bags and electronic devices of its staff and office visitors.

Under proposed rule changes put forward by the organization’s administration, security staff would be entitled to seize and search bags, phones and laptops at any of the EPO’s locations. The changes would also prohibit the creation or dissemination of posters and flyers without explicit management permission.

To justify the extraordinary measures, the organization’s security head argued that the EPO’s protocols were not up to similar levels as “similar” international organizations such as the United Nations and Interpol.

It didn’t take long for EPO staff to slam the comparison between an office that reviews patent applications and one that deals with issues of national and international security. As far as anyone is aware none of Microsoft’s patents have ever come in a folder marked “Top Secret”.

In a memo sent to workers at the EPO’s Hague office, the staff committee noted that “in the 40 years’ history of the Office, there has not been any real threat. One wonders if new and very intrusive rules are necessary in the first place.”

As is usual for such articles from The Register, comments quickly deviate away from the EPO and latch onto Brexit.

The above, as usual, is being used to argue for Brexit, even by Remainers, one of whom wrote: “It’s this chap and all the chaps and chapesses in the EU who do this that made me tremble on the verge of a Brexit vote. This is NOT what I would ever want The lack of accountability in the EU means that autocracy and corruption are sky-high. The worst decision the fledgling EU made was to emulate the French civil service. I am hoping that the shock of the UK going will make them clear their house, but sadly i think they will justify their rightness by not changing a thing.”

As usual, someone was quick to point out the obvious: “Are you aware of how many times it has been pointed out that the EPO is not an organ of the EU? That this has absolutely nothing to do with the EU? That if it was an EU body the issue would have likely been resolved long ago?

“Your gripes about the EU may be very valid but this is not an example of them. It weakens your case.”

Another person wrote (calling the EPO “EU Patent Office”): “It takes a lot of work to get a ZERO % vote of confidence from your workers. Even in the worst environments, there are usually 10% or 20% of employees who management pretty much leaves alone and who think that things aren’t so bad.

“And now the office wants to ban posters and leaflets without management review? You’d better not work at the EU Patent Office while trying to offer weekend piano lessons/kittens you want to give away/tickets to the local community theater production of “Camelot”/etc.”

Another Brexit-themed comment said: “The UK leaving won’t make a difference to us. Our inventors will still need to get Patent protection in Europe and therefore be running right into his Fiefdom. The EU seemingly can’t get rid of him. Why? If there is one bit of the EU that needs fixing now this is one.”

That’s actually a good question because the immunity still hasn’t been cracked by EU officials.

One person responded with: “Presumably he knows where the bodies are berried or it might be that the unelected EU president and staff all think like he does. It does make one wonder why the EU accounts have never passed an audit.”

Another one said: “The danger is that if someone discovers a successful way of getting rid of one useless senior EU bureaucrat then they might use it to get rid of some more. Better to keep your head down.”

One person added: “You would be correct if the EPO were an EU body but it is not. Holding the EU responsible for something it has no control over is absurd. Of course the EU cannot get rid of him. The EU has no authority over him; no capacity to hire or fire. What do you suggest “the EU” do?”

A more detailed explanation soon came:

The European Patent Organisation is set up in a way not dissimilar to the EU itself. It exists as a result of a treaty entered into by various separate sovereign nations, many (but not all) who have also signed up to the various treaties that underpin the EU.

And, like the EU and the European Commission, this makes the EPO effectively un-governable. Whilst it is in theory accountable to its member nations, it would take all of them to agree on a course of action if it’s direction were to be forcibly changed, like sacking the head of the office.

The discussion surrounding BREXIT is fascinating. On the one hand there’s a bunch of EU types promising a hard time for Britain, no trade deal, big divorce settlement, etc. On the either hand there’s the German government who seemingly don’t agree (they sell a lot of cars here), Sweden and Poland talking openly about having to do a deal with the UK, etc.

One way or other it’s going to define who in Europe really pulls the strings; sovereign nations or the European Union / Commission? The treaties say that the nations have devolved many powers to the EU, including the power to arrange trade deals, but it’s the member nations who have to decide on whether their (collective?) best interests are still being served by the EU. BREXIT is perhaps the first issue big enough to force all the member nations to truly, seriously consider that question. Here in the UK we’re kinda dependent on them doing so.

Alas, the situation in the European Patent Office is so low down the list of priorities for the member nations of the EPO that it is unlikely it will be sorted out. This situation will continue to fester until the situation resolves itself “naturally”, or until the Office has become so dysfunctional that politicians in the member nations are being badgered about problems with patents by companies in their own country.

Like many international treaties of this sort, there’s very often little thought put into them to define what should happen when things go wrong, how indeed performance of the arrangements should be measured so as to know whether things are going wrong or not, etc. The treaties behind the Eurozone are classics of the genre, with nothing in them to define what happens when a member nation goes bust. Hence the improvised support for Greece, and soon Italy. Such ommissions in the Eurozone treaties were part of the reason why the British government ultimately deciding to not join in.

This always happens because when all the negotiators are sat in that one room talking about setting up the treaty, it’s impolite to ask the awkward questions about “problems arising” which might be taken as an insult by others in the room. Appalling really.

Some comments lay all the blame on Battistelli. For example: “Battistelli crazy is the new batshit crazy and even seems to be outdoing certain politicians who will remain nameless. I have to wonder who’s taking lessons from who here?”

No matter how much bad publicity the EPO attracts, Battistelli miraculously remains in his job and the complicit Administrative Council does virtually nothing about it. We can imagine which lies the EPO will disseminate next, in order to pretend things are improving. Here is a comment to that effect:

In a few months time (when this particular news has blown over) we’ll suddenly get some new positive stories about how much good work EPO is doing (I always thought EPO was illegal while cycling) and it’ll probably soon followed by a bill.

Because this kind of quality obviously comes at a cost. These guys don’t work for free you know.

And then a few months later you’ll learn that it has all come to pass. Carefully kept outside the media.

All in all, the comments are in some sense as interesting as the article, which presents no new information (which hasn’t already been covered by Techrights). The comments show just how urgent an overhaul is at the EPO — an overhaul which involved no UPC but removal of the whole Battistelli “swamp”.

In the mean time, software continues to be patented by the EPO (as insiders keep telling us), Bastian Best continues to collaborate with the EPO to make it so (watch what he has just released) and law firms like Boult Wade Tennant plan/explain how to slide patents through EPO examiners that are overworked and pressured for “production”.

“In this regard,” said the law firm a few days ago, “identifying what kind of amendments the EPO examiners will and will not deem to be “allowable” can be difficult. Decision T1679/10 issued by the EPO Boards of Appeal provides clarification on the criteria for deciding whether an amendment should be refused on these grounds.”

Who does this whole system really serve? Neither the EU nor Europeans. It exists in a vacuum (Eponia), which is exempted from the law and violates national laws in host nations. Where is Interpol when one needs it? Or even Europol… █

WE RARELY write about Canadian patent law, but we certainly write about Canadian companies like BlackBerry and i4i because they use the US patent system (for the most part) to go after their rivals. IAM recently published, for a law firm as usual (shameless self-promotion), “Patent law: 2016 year in review” (it’s Gowling WLG Canada about various cases which we rarely touched or even mentioned here). “Patent assertion entities” is the final part of it, which basically alludes to patent trolls. BlackBerry and i4i both became Canadian patent trolls. As for WiLAN, a troll which is headquartered in Ottawa, it’s still as active as ever.

“As far as we are aware, software patents are not (or hardly) a problem in Canada, but the country has already yielded quite a few patent trolls…”According to End Software Patents with its resources on Canada, Canada’s “Patent Act reads: “No patent shall be granted for any mere scientific principle or abstract theorem.”” In practice, however, a lot of the above entities simply pursue patents at the USPTO and then utilise as much as they can get there for litigation purposes.

Two Canadians, Ian Goodman and Dane Smith from “SIM. IP Practice,” (whatever that is, complete with the dot) published this article about “Test for Obviousness in Canada”. Before refusing a patent application,” it explains, “the Canadian Patent Office convenes a panel of the Patent Appeal Board (the “PAB”) to review the application and provide a recommendation to the Commissioner of Patents. This recommendation and the Commissioner’s determination on the allowability of the application are published together as a “Commissioner’s Decision”.”

This is the equivalent of PTAB in the US or the appeal boards (BoA) of the EPO.

They also said that Canada’s “Supreme Court further stated in Apotex that an “obvious to try” inquiry may arise in the fourth step of the test in “areas of endeavor where advances are often won by experimentation”.”

As far as we are aware, software patents are not (or hardly) a problem in Canada, but the country has already yielded quite a few patent trolls, which conveniently operate outside Canada (typically in countries that have software patents and where patent maximalism prevails). █

Faking ‘innovation’ by just stockpiling patents (to flex muscles and sue rivals) rather than earning leadership based on merit

Summary: Google’s protectionist embrace of patents — including software patents — in order to drive competitors out of business and potentially monopolise this whole area is a disturbing if not inconvenient truth

According to this report from Bloomberg, “Google [disguised as "Alphabet" is] Top Filer of Self-Driving Car Lidar Patents”. From the report:

Technology giant Alphabet Inc.’s Google has the biggest trove of U.S. patents related to the crucial autonomous-car technology that’s at the heart of its dispute with Uber Technologies Inc., Bloomberg Law data show.

The future is likely to bring even more patent and trade-secret disputes, as carmakers and technology companies race to deliver the first commercially viable self-driving cars to consumers.

It’s troubling to think that Google already uses patents in this domain, probably in an effort to tax/push out rivals. We are likely to see more of that in the future. This was the first time in history that Google actually initiated a patent war. █

But rumours say he might try to ratify in a rush, without a proper debate, just before Article 50 is invoked (either this coming week or by month’s end)

Summary: Even the person whom many inside the echo chamber of Team UPC believe will ratify the UPC admits that it’s a European Union-type treaty (agreement), which therefore cannot co-exist with Britain’s intent to exit the Union (and potentially crack/split the United Kingdom too)

THE EPO has not been saying much about the UPC recently; they too probably realised that they need to keep it under the radar because the more people out there find out, the greater the backlash will be. But even British politicians are starting to find out what’s going on, in part because we inform them, one way or another. We have some plans for next week and we expect many more signatures to land on this petition. The UPC still faces many legal barriers here and I’ll probably make some phonecalls on Monday (e.g. to political parties). We can definitely end the UPC for good (at least in the UK) by this month’s end.

“We can definitely end the UPC for good (at least in the UK) by this month’s end.”“The #UPC #Brexit discussion heating up again,” one person wrote the other day. “1 half of #IP community: “everything is in order”. Other half: “How is this even happening?””

The “British political journalists are beginning to pick up on the UPC and Brexit,” IAM warned the other day (after it had done a lot of pro-UPC propaganda). “This is good from @IanDunt,” it said, citing an article we remarked on a few days ago.

“Even Jo Johnson, who is supposed to grok such things (but is probably too young and inexperienced to grasp it all), suddenly realises that the UPC is untenable. “Ian Dunt said “Nowhere near enough of you are reading my article about patents & Brexit. Do you understand the pain I went through?”

Covering patent-related issues and reading (while comprehending) is not easy. We chose to cover a very ‘niche’ topic here in Techrights because it is a very important and often under-appreciated/neglected topic. There are some comments on this tweet from Russell Barton‏. As we already noted the other day (as did others), Dunt hadn’t gotten all the facts right. But it’s not easy, to be fair to him, as British politics, EU politics, and patent laws intersect in truly complex ways. Even Jo Johnson, who is supposed to grok such things (but is probably too young and inexperienced to grasp it all), suddenly realises that the UPC is untenable.

Maybe I can accept that none of this is “big” news in the IP world. However, I am struck by the curious lack of commentary (both here and in the “mainstream” media, even including rabidly pro-Brexit papers such as the Daily Mail) on issues raised by the UPC, such as how on earth the UK can stay in the UPC… or even how the UPC can be made to function, post-Brexit.

I have heard some hand-waving bluster from various individuals on this point, but nothing whatsoever in the way of serious, reasoned and robust analysis. With the UK seemingly intent on signing up to a venture that will lead us all into the unknown (and potentially on a very bumpy ride for patentees and interested 3rd parties), I find the lack of analysis on this point very troubling indeed.

Not being someone who is prone to believe in conspiracies, I would like to think that there is no self-censorship going on at IPKat on this issue. But it would be nice to have some evidence to support this belief.